Maltsin v Minister for Immigration
[2004] FMCA 662
•19 October 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MALTSIN & ANOR v MINISTER FOR IMMIGRATION | [2004] FMCA 662 |
| MIGRATION – Migration Review Tribunal – partner visa – procedural fairness where credibility a significant issue – Applicants witnesses present at hearing though not called – whether denial of procedural fairness – failure to adjourn hearing – hearing concluded due to commitment of Tribunal member – application allowed. |
Migration Act 1958 (Cth), ss.31(1), 361, 363
NADR of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCAFC 167 (7 August 2003)
SAAD v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCAFC 65 (11 April 2003)
Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12
Craig v State of South Australia (1995) 184 CLR 163
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323
SAAD v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCAFC 65
NACP v Minister for Immigration & Multicultural & Indigenous Affairs (2003) FCA 499 (23 May 2003)
SDAV v Minister for Immigration and Multicultural and Indigenous Affairs, Minister for Immigration and Multicultural and Indigenous Affairs v SBBK (2003) FCAFC 129
Minister for Immigration and Multicultural and Indigenous Affairs v WAFJ (2004) FCAFC 5
| Applicants: | JAMES MALTSIN and MARGARITA BOGODIST |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | MZ 1193 of 2003 |
| Delivered on: | 19 October 2004 |
| Delivered at: | Melbourne |
| Hearing Date: | 8 September 2004 |
| Judgment of: | McInnis FM |
REPRESENTATION
| Counsel for the Applicants: | Mr T.V. Hurley |
| Solicitors for the Applicants: | Florin Burhala & Associates |
| Counsel for the Respondent: | Dr S. Donaghue |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The decision of the Migration Review Tribunal given on 31 March 2003 be quashed and/or declared to be void and of no effect.
The matter be remitted to a differently constituted Migration Review Tribunal to be determined according to law.
The respondent pay the applicants' costs of the application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MZ 1193 of 2003
| JAMES MALTSIN and MARGARITA BOGODIST |
Applicants
and
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
In this application the first applicant (the review applicant) married the second applicant (the visa applicant) in Melbourne on 10 April 2000. The visa applicant is a citizen of Russia currently residing in Moscow. She had visited Australia between 16 October 1997 and 16 February 1998 and again between 28 March 1998 and 19 April 2000. On both occasions she had arrived in Australia on an entertainment visa, although it is noted that on the later visit she subsequently held other visas.
On 18 July 2000 the visa applicant applied for a partner (provisional class UF) subclass 309 visa (the visa). She was nominated in connection with her application for this visa by the review applicant who is an Australian citizen.
A delegate of the respondent refused the application for the visa on 13 September 2001. Both applicants then applied to the Migration Review Tribunal (the MRT) for review of the delegate's decision. On 31 March 2003 the MRT affirmed the delegate's decision. By an application filed on 17 April 2003 in the Federal Court of Australia both applicants sought judicial review of the MRT decision.
Before this court the order sought on behalf of the applicants was an order in the nature of certiorari to quash the MRT decision and to otherwise remit the matter to a differently constituted MRT for determination according to law. In the application filed in the Federal Court the grounds relied upon are as follows:-
“3.An order in the nature of Certiorari to quash the MRT decision on the ground that it involved jurisdictional error being a failure to comply with the requirements of the rules of natural justice and, or alternatively, the requirements of the Migration Act being
(a) the MRT refused to hear evidence from all of the five witnesses (not including the first-named applicant) which the applicants wished to call, but required the applicants to proceed, relying on evidence from the first-named applicant, the second‑named applicant (by telephone), the first-named applicant's mother and one other witness;
(b)the MRT failed to conduct the review according to the requirements of the rules of natural justice because it required the applicants to present their case within a fixed period of time, notwithstanding that the applicants had given notice that the applicants intended to call five witnesses (not including the second-named applicant);
(c)the MRT failed to comply with the rules of natural justice in that it based its decision on a fact that did not exist, or made a decision that was so unreasonable no person could have made it because at paragraph 67 the MRT found that the first-named applicant had been out of Australia between 6 July and 28 August 2002 when he had not, and further, that the only time when ten withdrawals were made totalling $8000 was when the first-named applicant was in Russia when in fact the first-named applicant was in Australia and these withdrawals were made by the second‑named applicant;
(d)further and in the alternative, at paragraph 69 the MRT concluded the first-named applicant had not disclosed all his financial resources because airline tickets to Russia cost from $2785.00 to $3274.00, whereas the first-named applicant produced receipts that the cost was between $1400.00 and $1500.00;
(e)the MRT failed to comply with the requirements of the rules of natural justice in dismissing evidence of persons whom the applicants would have called on the basis that they were not credible without hearing from them.”
It is appropriate in the present application to note the history of this matter. It will be evident from that history that when the application came before the MRT the MRT quite properly would have had serious reservations concerning the credibility of the applicants. There is no doubt in my mind that credibility in this application was of significant and paramount importance. Indeed, it was very much a threshold issue in this application as it may well be in other applications of a similar kind. A review of the previous visa applications set out by the respondent in contentions of fact and law filed on 2 October 2003 provides sufficient background information for the present purposes as follows:
· The review applicant's marriage to the visa applicant was his third marriage. He married his first wife (Ms Naidrova) in Russia in 1991 and sponsored her to Australia. She left him two or three days after her arrival in this country and they were divorced in Australia in 1995.
· On 7 September 1997 the review applicant married his second wife (Ms Popova) who at the time was, like the visa applicant, visiting Australia on a subclass 420 entertainment visa. A few weeks later his second wife applied for permanent residence on the basis of that marriage. The application was refused because the delegate was not satisfied that the parties' marital relationship was genuine. The delegate reached that view because, prior to the decision being made, the review applicant had nominated another person (the visa applicant) for a spouse visa on the basis of his de facto relationship with her. The review applicant and his second wife were divorced on 9 March 2000. After an appeal to the Federal Court and a further hearing by the tribunal the second wife was granted a visa on the basis that she had suffered domestic violence perpetrated by the review applicant.
· The visa applicant has also previously been married. On 17 April 1998, four days before the subclass 420 visa on which she had arrived was due to expire, she married an Australian citizen who was a friend of the review applicant. The day before her visa was due to expire she applied for permanent residency on the basis of this marriage. The application was refused by a delegate on 20 October 1998 on the basis that her marriage was not genuine and continuing. The decision was affirmed by the Migration Internal Review officer (MIRO) on 11 February 1999.
· The visa applicant's then husband advised the department in March 1999 that he did not intend to appeal that decision as he was no longer living with the visa applicant and was filing for divorce.
· The visa applicant did not notify the department of her separation from her first husband but instead sought to review the MIRO decision. During the review hearing in September 1999 the visa applicant accepted that her first marriage had ended and sought to substitute the review applicant as her nominating spouse in his place. The tribunal refused this substitution and affirmed the MIRO decision.
It will be clear from that chronology of events that on the face of the material, both in relation to the visa applicant and the review applicant, that there is considerable concern over the previous relationship history of both applicants which would alert any reasonable MRT to the fact that credibility would be a major and significant issue in any further applications to be determined by a tribunal. In matters of this kind where credibility is of significant importance it is hardly surprising to find that the applicants rely upon what is described as voluminous material seeking to assert the genuineness of their relationship and to otherwise rely upon and call witnesses who, it is believed, will corroborate the applicant's case. The requirements of procedural fairness and natural justice in an application where credibility is of crucial significance becomes far more important than may be the case in other applications where credibility and assessment of the individual credit of individual witnesses may not be as crucial.
The relevant legislation
It is significant to set out and incorporate in this decision the definition of "spouse" found in regulation 1.15A. That regulation provides in part that:
(1) For the purposes of these regulations, a person is the spouse of another person if the two persons are:
(a) in a married relationship, as described in subregulation (1A); or
(b) in a de facto relationship, as described in subregulation (2).
(1A) Persons are in a married relationship if:
(a) they are married to each other under a marriage that is recognised as valid for the purposes of the act; and
(b) the minister is satisfied that:
(i) they have a mutual commitment to a shared life as husband and wife to the exclusion of all others; and
(ii) the relationship between them is genuine and continuing; and
(iii) they:
(A) live together; or
(B) do not live separately and apart on a permanent basis.
There is no question of law raised in relation to whether or not the MRT applied the relevant regulation or indeed legislation in this matter. It is clear from s.31(1) of the Migration Act 1958 (Commonwealth) (the Act) that provision is made that there are to be prescribed classes of visa and the section provides that regulations may prescribe criteria visas of specific classes which include of course the current class of visa.
It was clear at the outset in this application that a key issue between the parties involved an analysis of the grounds relied upon in relation to the five witnesses who were made available by the applicants to give oral evidence before the MRT. The five witnesses were made available in accordance with a request for hearing which was received by the department on 1 October 2002 on behalf of the applicants. In that request for hearing, which was a response to an invitation to appear before the tribunal dated 26 September 2002, it was made clear that the applicants wished to call five witnesses and a request was made that the tribunal take oral evidence from the five witnesses. The first of the five included the first-named applicant. The other four witnesses were available at the hearing, although it is noted that two of those witnesses were not called.
To understand the procedure before the MRT I refer to the supplementary court book which sets out the transcript of proceedings before the MRT. The hearing occurred on 15 October 2002. At the hearing the applicants were represented by a migration agent, Mr Burhala. It is noteworthy that at the very commencement of the hearing the witnesses to whom the applicants had referred in their request cited earlier in this judgment were all available. It seems to be common ground that the hearing had been scheduled to commence at around 2 pm. It is further noted that s.361 of the Act applies to matters of this kind. It is appropriate to incorporate that section in this judgment as follows:
“Applicant may request Tribunal to call witness and obtain written material
(1) In the notice under section 360A, the Tribunal shall notify the applicant:
(a) that he or she is invited to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review; and
(b)of the effect of subsections (2) and (2A) of this section.
(2) The applicant may, within 7 days after being notified under subsection (1), give the Tribunal written notice that the applicant wants the Tribunal to obtain oral evidence from a person or persons named in the notice.
(2A)The applicant may, within 7 days after being notified under subsection (1), give the Tribunal written notice that the applicant wants the Tribunal to obtain:
(a)written evidence from a person or persons named in the notice; or
(b)other written material relating to the issues arising in relation to the decision under review.
(3) If the Tribunal is notified by an applicant under subsection (2) or (2A), the Tribunal must have regard to the applicant's notice but is not required to comply with it.
(4) This section does not apply to the review of a decision covered by subsection 338(4).”
For present purposes it is also noted in passing that s.363 provides powers of the tribunal which include the power to take evidence on oath or affirmation for the purpose of the review of a decision, and further, the power to adjourn the review "from time to time" (see ss.363(1)(a) and (b)).
In relation to the threshold issue it was submitted for and on behalf of the respondent that simply giving notice that a witness is requested to give oral evidence does not mean that there is an obligation on the MRT to actually comply with that request. Reference was made to s.361(3) set out above.
In my view, it is appropriate to set out relevant parts of the transcript in the hearing before the MRT. It is noted that the start time and finish time is not recorded in the transcript, although it would seem to be common ground that the hearing lasted for a period of approximately two hours. It should also be noted that there appears in the court book voluminous material by way of declarations and indeed photographic evidence filed and relied upon by both applicants. The following extract is relevant:
MS GRAHAM: Mr Burhala, this is obviously a pretty complicated matter simply because of the amount of material we've got to get through and I can't see that we're going to be able to take much evidence from your witness if we are going to get through the review applicant, the visa applicant. Do you have a preference for which of the people in the back I see first before we run out of time?
MR BURHALA: Yes ... Conrad.
MS GRAHAM: I will give him a number one then.
MR BURHALA: Yes. His wife is actually pregnant and due at any time so he will probably have to go straight away.
MS GRAHAM: Probably.
MR BURHALA: As soon as you hear the evidence. And then - - -
MS GRAHAM: I am really – I am not asking about people’s convenience, I am asking about the value of the evidence to your case. Which of the people has the most important evidence?
MR BURHALA: The evidence that they will give is pretty much the same so the parents are probably the most important ones.
MS GRAHAM: Both of them, are they both necessary? Would they give the same evidence?
MR BURHALA: Similar evidence. Probably the mother would be the best one to give the evidence.
MS GRAHAM: All right. Of Mr Conrad, Ms Novamlinska and Mr Nesmal?
MR BURHALA: Probably Ms Novamlinska because she has been recently on a trip to …
MS GRAHAM: I mean I am not saying I won’t hear from the others but I anticipate that we are going to run out of time and I don’t want your best witness missing out.
MR BURHALA : No, that is fine. I will say mother and Ms Novamlinksa.
MS GRAHAM: All right. Now, for the people in the hearing room, as I have indicated, it is not that I don’t want to hear from you all, but we may run out of time. What I am going to do first up is ask that everyone but the review applicant leave the hearing and you will be called in one at a time. Some of you may end up just sitting in the waiting room and going home without coming back in. I apologise for that, that is really just a matter of time. Thank you for coming anyway and I have noted that you are here.
Good afternoon, Mr Maltsin, I am sorry about all preliminary stuff. Now, I have to say to Mr Maltsin and you, Mr Burhala, because there are six files or some thing it is almost inevitable that I am going to make an error in the facts. If I am doing that, if either of you note or notice that I have misconstrued something that is on the files please, especially you, Mr Burhala, if you could point me in the right direction. I have done my best to get on top of it but it is an enormous amount of material and I would be grateful for guidance.
I am not asking you to give evidence, least you think that is a nice little opening, but am simply admitting that I am not perfect and I may get some things wrong and I would grateful for help.”
Before considering the issues further, it is appropriate to note the relevant principles of law relied upon by the respondent in matters of this kind which for present purposes are accepted. Specifically,
I accept and apply the decision of the Full Court of the Federal Court in NADR of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCAFC 167 (7 August 2003) and in particular the following which appears at paragraph 9:
“The second ground of appeal was that the primary judge erred in not finding an error of law in the credibility finding of the Tribunal. The finding of facts,, including the making of findings of credibility, was uniquely within the jurisdiction of the Tribunal and not within the jurisdiction of the Court. It would have been in contravention of Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 for the Court to have engaged in merits review. Furthermore, there is no error of law, let alone a jurisdictional error, in the Tribunal making a wrong finding of fact: Abebe v Commonwealth (1999) 197 CLR 510 at [137].”
I further note and take into account other decisions relied upon by the respondent which I regard as relevant to the current application. In particular, I note the reasoning of the Full Court of the Federal Court in the matter of SAAD v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCAFC 65 (11 April 2003). In that case a decision delivered by Carr J, with whom Cooper J agreed, provides the following when considering the equivalent of s.361 of the Act. The court in that case was dealing with s.426(3). The court states in its judgment the following:
“As mentioned above, the Tribunal had received a request under s 426 from the appellant’s adviser which differed from the request made by the appellant himself in that it contained no request that evidence be taken from Mr Mansourian. The appellant, who was present at the second hearing and who also had his adviser at the hearing, did not at that point, or indeed subsequently, seek to have evidence taken from Mr Mansourian, even though further submissions were sent to the Tribunal after the hearing. In those circumstances, in my view, there is no basis for the assertion that the Tribunal acted in breach of s 426(3) of the Act by failing to have regard to the appellant’s wishes that Mr Mansourian be called to give evidence at the hearing.”
I note further the reference by the respondent to the decision of the High Court of Australia in Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 and in particular, reference made in that case to the following paragraphs 43 and 124.
“43.This ground of error is misconceived for two reasons. First, there was evidence before the Tribunal to assist it in determining how to deal with the question of unreliability. There was the Turner report and the fact that the respondent did not object to providing evidence either at the hearing or by affidavit following the hearing. Secondly, whilst s 427 of the Act confers power on the Tribunal to obtain a medical report, the Act does not impose any duty or obligation to do so. Rather, s 426 provides that, even if an applicant requests that the Tribunal take oral or written evidence from a witness (such as a medical practitioner or psychiatrist), the Tribunal is not required to obtain such evidence. Thus, the Tribunal is under no duty to inquire.
…
124.Under s 427 of the Act, the Tribunal may require the Secretary to arrange, and report upon, any investigation or medical examination that the Tribunal thinks necessary with respect to a review. That does not mean that the Tribunal is bound to make particular inquiries or to obtain evidence on medical or other matters. There is nothing to suggest in this case however that the Tribunal failed, whether it was bound to do so or not, to make all appropriate and sufficient inquiries. The Tribunal was faced with a request by the respondent that the hearing proceed, which it did, and it was well aware of the possibility that the respondent was stressed and made due allowance for that. Even if the respondent had made a request that a particular psychologist or psychiatrist give evidence, the Tribunal was not obliged to comply with it. It certainly made no jurisdictional error in not undertaking further inquiries. It had a discretion and not an obligation to pursue such other inquiries, if any, as it saw fit.”
Since Plaintiff S157 when considering the issue of jurisdictional error the Court is able to rely upon the broader version of jurisdictional error identified in the High Court decisions of Craig v State of South Australia (1995) 184 CLR 163 and Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323. In Yusuf McHugh, Gummow and Hayne JJ at paragraph 82 of their judgment cited with approval an extract from Craig v South Australia and stated the following:-
“82.It is necessary, however, to understand what is meant by "jurisdictional error" under the general law and the consequences that follow from a decision-maker making such an error. As was said in Craig v South Australia, if an administrative tribunal (like the Tribunal)
‘falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.’
‘Jurisdictional error’ can thus be seen to embrace a number of different kinds of error, the list of which, in the passage cited from Craig, is not exhaustive. Those different kinds of error may well overlap. The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision-maker both asking the wrong question and ignoring relevant material. What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it. Nothing in the Act suggests that the Tribunal is given authority to authoritatively determine questions of law or to make a decision otherwise than in accordance with the law.”
It is useful to note the following extract from the Full Court of the Federal Court in SAAD v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCAFC 65, per Carr J (with whom Cooper and Finkelstein JJ agreed) as follows:-
“…There is no mention in the above passage of the first sur place claim. Nor is that claim mentioned anywhere else in the Tribunal's reasoning. My assessment is that the Tribunal failed to consider the discrete, first sur place claim. This, in my view, was not (as the respondent submitted) simply a failure to refer to evidence in support of such a claim, but a complete failure to consider the claim at all. In my view, the Tribunal thereby fell into jurisdictional error of the type referred to in Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30. See also SBAB v Minister for Immigration and Multicultural Affairs [2002] FCAFC 161; Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802 at [14] and Paul v Minister for Immigration and Multicultural and Indigenous Affairs (2001) 113 FCR 396 at [79].”
I note a further helpful decision of Hill J in NACP v Minister for Immigration & Multicultural & Indigenous Affairs (2003) FCA 499 (23 May 2003). In that case the following paragraphs are relevant: -
“31 The question not decided in Plaintiff S157/2002 (because it was unnecessary to decide, other than in respect of denial of procedural fairness) is what constitutes jurisdictional error in the sense used by the High Court in that case. Clearly failure to afford natural justice will constitute jurisdictional error for that is what the High Court actually decided in Plaintiff S157/2002. However, the question of what constitutes jurisdictional error as a ground for the grant of the constitutional writs of prohibition and mandamus (or the ancillary relief of certiorari) such as to bring about the result that the decision in question is a nullity, has been the subject of discussion in a number of cases.
…
33 Gaudron and Kirby JJ noted that the question whether there was a failure or constructive failure, to exercise jurisdiction required consideration of the nature of the obligation imposed upon the Tribunal (and in relation to a decision of the Minister which was also challenged, by the Minister). Their Honours stated the effect of Plaintiff S157/2002 to be as follows (par 72):
‘... [Section] 474 does not prevent the grant of prohibition, mandamus or certiorari in respect of decisions on the part of officers of the Commonwealth involving jurisdictional error for such decisions are not regarded, in law, as decisions at all and are, thus, not properly described as `a decision ... under [the] Act'. However and as also explained in Plaintiff S157/2002 v The Commonwealth of Australia, the effect of a provision such as s474 of the Act is to necessitate an examination of statutory limitations or requirements to ascertain whether, in the light of s474's restrictions on judicial review, non-observance of those limitations or requirements does or does not result in jurisdictional error.’
…
35 What matters for present purposes is not whether a failure to consider the relevant criteria would be jurisdictional error, but rather whether a failure to consider at all the case or a substantial part of the case advanced by an applicant would constitute jurisdictional error. Clearly the Tribunal has the same powers as the original decision maker within the context that the Tribunal was obliged to review the original decision and acting in the shoes of the decision maker to do again what the decision maker was required to do. The powers thus conferred upon the Tribunal likewise involve the consideration of the application against the criteria which the Act and the Regulations prescribed. It is, I think, quite clear that in the view of Gaudron and Kirby JJ, at least, the failure of the Tribunal to give consideration to the argument or case put forward by an applicant would constitute jurisdictional error and result in a decision which would not be a decision made under the Act and accordingly not be protected by s 474.”
The Full Court of the Federal Court in SDAV v Minister for Immigration and Multicultural and Indigenous Affairs, Minister for Immigration and Multicultural and Indigenous Affairs v SBBK (2003) FCAFC 129 at paragraphs 27 and 28 relevantly states the following:-
“27 The statement that a particular error is a `jurisdictional error' is a statement of conclusion. The conclusion is that, be the error one of omission or commission, some essential or indispensable requirement for jurisdiction has not been met. An imperative duty has not been discharged or some inviolable limitation has been breached and therefore the action or decision is null and void; Plaintiff S157 at [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ. The error may be easy to detect (manifest error) or more difficult but, either way, an action or decision is either one which falls within the decision maker's lawful authority or it is not. If it falls within the decision maker's lawful authority then the error is made `within jurisdiction'. If it does not fall within the decision maker's lawful authority then the error is a `jurisdictional error' and as such it cannot be a valid action or decision.
28 In relation to statutory jurisdiction, such as that of the Tribunal, a conclusion as to the full extent of the jurisdiction granted, that is whether the decision is or is not authorised, can properly be reached only by construction of the whole of the relevant statute, in this case the Migration Act. When the statute contains a privative clause there is an inevitable tension between the privative clause and those parts of the statute that confer jurisdiction. As Gleeson CJ commented in Plaintiff S157 at [17]:
`The essential problem is the inconsistency between a provision in a statute, or an instrument, conferring a limited power or authority, and a provision which appears to mean that excess of power or authority may not be prohibited.'
Resolving that tension involves the process of reconciliation referred to by the High Court in Plaintiff S157.”
I have no doubt that if all the court was being asked to do in the present case was to revisit a finding of fact reasonably open to the MRT in relation to the issue of credibility, then it should not be permitted to do so in circumstances where it would be claimed that this was a proper function of a court undertaking judicial review.
In the present case the grounds relied upon by the applicant, in my view, clearly relate to the issue that in the conduct of the hearing the MRT has denied procedural fairness and/or natural justice to the applicants by refusing to permit the applicant to call those witnesses to give evidence, that is, refusing to hear the oral evidence as requested. Whilst one interpretation of the extract from the transcript to which I cited earlier may be that the represented applicants had the opportunity to consider their position and to insist upon the witnesses being called, I am satisfied that on a proper reading of the extract it was made perfectly clear to the applicants' then representative that the MRT had another commitment which meant in the circumstances that the MRT had "no intention of going beyond 4 o'clock".
Further, it was made very clear in the course of the transcript that the MRT was not going to be able to conclude the matter and indeed a preference was sought in relation to the witnesses as described by the MRT "before we run out of time". When the then representative of the applicant used the expression "that is fine", it was in response to the MRT stating the following:
I mean, I'm not saying I won't hear from the others, but I anticipate that we are going to run out of time and I don't want your best witnesses missing out.
It seems clear to me in the circumstances that despite the fact that this was a complex case with voluminous material where credibility was a key and crucial issue, that the MRT as a result of its own commitment after or beyond 4 o'clock was only prepared to allocate a short period of time for this hearing and did not at any stage offer to make an arrangement, as it clearly had the power to do, for a further adjourned hearing to enable all the witnesses then requested to be available for oral evidence to give that oral evidence and be tested.
It is significant in the present application in considering the issue of a denial of natural justice to specifically refer to a key finding of the MRT which, in my view, can only be described as significant and crucial. In particular, I refer to paragraph 80 of the MRT decision which provides the following:
“80. The Tribunal finds that the review applicant entered into two false marriages solely for the purpose of supporting his former wives' applications for permanent residence. The Tribunal finds, therefore, that the review applicant's credibility and reliability is brought sharply into question in relation to the current visa application. The compliance of the review applicant's parents in at least one of those false marriages also brings their credibility and reliability into question in relation to the current application. The review applicant's connections with business interests in Moscow, which may or may not be legitimate, suggests that the support given to the visa application by persons in Russia may not be genuine. The Tribunal also notes the visa applicant's lack of credibility in relation to her previous application for permanent residence on the basis of her former marriage. Therefore, when taking into account the evidence before it, which appears to disclose a web of deceit throughout the review applicant's family and social connections, the Tribunal can not be satisfied to any degree of confidence that the review applicant's family and friends are witnesses of truth in this matter. The Tribunal finds, therefore, that it can give little weight to the letters and declarations provided in support of the application.”
It is clear in that finding that the MRT gave little weight to letters and declarations provided in support of the application in circumstances where two of the witnesses who were available for oral evidence were not given the opportunity to verify those documents and/or be tested. It is equally clear that a finding that on the evidence there is a disclosure of what is described as "a web of deceit throughout the review applicant's family and social connections" that the MRT had made a significant and profound finding which could properly be regarded as of practical significance to the outcome of this application.
Hence, in my view, it is not to the point to assert, as asserted on behalf of the respondent, that there is a statutory option not to accede to a request for witnesses to be orally examined in circumstances where the witnesses are available and where the reason advanced for not hearing the witnesses is not a reason based upon any cogent assessment of their potential evidence, but rather to fit in with the time constraints imposed upon the applicants as a result of the MRT's own commitments after 4 o'clock that day. That does not provide a basis upon which it could properly be said that the MRT has reasonably concluded that it should not receive the oral evidence. The mere fact that a representative at the time appears to have acceded to the request must be viewed in the light of the transcript where it was at least intimated that perhaps the other witnesses would be called to give evidence at a later time and that the more important witnesses were to be called that day.
One inference that might be drawn from that proposal is that those witnesses may be favourably received by the MRT. In any event, it does not matter whether they were to be favourably received or otherwise because what is important is the impression that may have been given to the representative of the applicants that at that point in time the choice of preferred witnesses may not necessarily preclude the applicants from relying upon the oral evidence of the other witnesses whose evidence was not received that day. It was clear that the MRT did not proceed to consider the evidence of witnesses who were then available. However, it then made significant and crucial findings of credit of the applicants' case including written documentation from the witnesses who the applicants were not able to call.
The duty upon the MRT, whilst not being the same as a court of law, still involves the application of the principles of natural justice and procedural fairness. In circumstances where there are a modest number of witnesses proposed to be called, as in this case, namely, five, and where a time constraint is imposed in a complex matter with voluminous material and where credibility for obvious reasons is of crucial significance, the opportunity for witnesses to be called and for their evidence to be tested becomes more significant than it may be in other cases. Hence, the requirement of the MRT to afford natural justice and procedural fairness by allowing those witnesses to be called either that day or, as a result of time constraints, on an adjourned date becomes significant. To deny the applicants the opportunity to call that evidence in the present case, in my view, is a denial of procedural fairness and/or a breach of natural justice of a kind which is sufficient, having regard to the authorities to which I have referred, to constitute jurisdictional error.
I am satisfied on that basis that there is a sufficient jurisdictional error to render void the MRT decision and to provide a proper basis upon the relief of certiorari as requested should be granted to quash the decision and to otherwise refer the matter to the MRT to a differently constituted tribunal to be determined according to law.
During the course of submissions for and on behalf of the applicant reliance was also placed upon other issues which were then the subject of the grounds in the application. The conduct of the hearing, it was submitted, required the MRT to conduct the hearing in a manner which could not be described as rushed. Numerous references were made to the transcript of the hearing to demonstrate what might be described as the rushed nature of those proceedings. To the extent that it is relevant, it is appropriate to set out extracts that appear at pages 5, 18, 26, 38, 39, 40, 44, 45, 47, 49, 50 and 51. The extracts are set out as follows:
“Now, I don’t think there is anyone coming in here after us at half past 3. There is no way we well get out of here in an hour but I have no intention of going beyond 4 o’clock because I have my own commitments then. So we will do our best to get the best evidence for your case within that time and what I suggest to you, and I will also to your witnesses, is that because we are tight for time that you try and concentrate on the questions that I am asking and address them as closely as you possibly can. People tend to waffle here because they get nervous and it is a very emotional time and waffling isn’t going to help you case. All right?
So if you can try and listen to what I am after and try and address that as briefly as you can. Now there is a lot of evidence in the file about your travel out of Australia.
…
MR MALTSIN: No, no before I lived with him - - -
MS GRAHAM: Well, I asked you and that is why – I can’t afford – we haven’t got the time.
…
MS GRAHAM: Yes. Now, we need to move along. Mr Maltsin, is there anything you would like to say to me at this point?
MR MALTSIN: Yes, I would like to know - - -
MS GRAHAM: I didn’t ask – I am not answering questions. Is there anything else you would like to say to me before I hear your witnesses?
MR MALTSIN: Nothing further, but I want to ask you one question if possible.
MS GRAHAM: Well, ask it but I doubt whether I am going to respond.
MR MALTSIN: In the thingumabob when they gave use the answer that we a non-genuine relationship, right, we said that my wife - - -
MS GRAHAM: In the decision?
MR MALTSIN: In the decision they said that they wife has a child which does not exist.
MS GRAHAM: Well, I am not aware of that being a problem.
MR MALTSIN: I just wanted to know where did that come from?
MS GRAHAM: I don’t know and I am not going to waste time talking about it because it is something that I am considering.
…
MS GRAHAM: We are getting very close to running out of time. Is there anything you want me to ask – just a moment Miss Bogodist. Is there anything you want me to ask her before we go? It really has to very quick.
…
MS GRAHAM: All right. Now, we will get Mrs Maltsin in quickly, followed by Miss Novamlinska.
…
MR MALTSIN: I have got to – I have got to - - -
MS GRAHAM: - - - and I cannot continue the hearing in your absence. If you want the Tribunal to hear evidence from this witness I would be obliged if you would remain at the hearing. Do you know anything about a pregnancy?
THE INTERPRETER: Yes, she was pregnant.
…
THE INTERPRETER: Well, I just would like to ask you to let Rita come here as soon as possible because all this already took three years and the father is very, very ill. We are all nervous, we are all stressed because of that and the father is losing his memory and he is very bad and we are all so tired because of that. We are so – such a pressure, we are so stressed out.
MS GRAHAM: All right, thank you. Mr Burhala, it night be quicker if you go and collect the crowd. I will only have time for one more and will you still want it to be Novamlinska?
MR BURHALA: Yes, yes.
MS GRAHAM: All right. So bring them all in so they can at least participate a little. All right, thank you very much.
….
MS GRAHAM: Now, you have all come in and been very helpful and supportive and I am afraid we have run out of time and I will only have five minutes with you. English is all right you with.
MS NOVAMLINSKA: Yes.
…
MS NOVAMLINSKA: Because at first when we met we – like, we had met Rita but we didn’t become such close friends from the beginning so but in a few months we started hanging out together and going to their place and they would come to our place and at that stage they were moved in together and they were …
MS GRAHAM: So do you know when they moved in together?
MS NOVAMLINSKA: I can’t remember …
MS GRAHAM: The month?
MS NOVAMLINSKA: No
MS GRAHAM: The year?
MS NOVAMLINSKA: …
MS GRAHAM: Do you know anything about a pregnancy?
MS NOVAMLINSKA: …
MS GRAHAM: Do you know anything about her other marriage, her previous marriage?
MS NOVAMLINSKA: …
…
MS GRAHAM: Thank you. That you, you can – Mr Maltsin, it is your last chance. We have run way over time and I can give you a brief response but not very long.
MR MALTSIN: I don’t know what to say. After getting so much - - -
…
MS GRAHAM: Look, I think we have all probably had enough today. I think our brains are all probably stretched as far as they can be stretched with this matter today.
MR BURHALA: Fine. I understand.
MS GRAHAM: So I think we will call it quits and if there is anything that I – you know, in cool reflection, anything I need to address. I mean there is no legal issue, it is really facts. So in that regard I think it is just up to you what you put in if you put anything in at all.
MR BURHALA: Okay.
…
MS GRAHAM: Yes, well, that is what I was about to say to you. My job from this point, if you agent puts in any further material in that is fine I will take that into account, but at this stage I am taking into account as much as I can get on top of with all these files. I would like to say I will be completely on top of every page, but I think that is not likely, but I will certainly do my best to absorb as much material as I can. And certainly the material that has been provided in this Tribunal application, I will take into account every item of that and as much of the previous stuff as I can also, all the evidence that was given today including obviously the evidence on the telephone and weigh it all up, all right, in determining whether or not the relationship is genuine, was genuine at the time of application, and continues to be genuine at the time of decision, which is now or whenever I sit down to type it up.
The delay in this matter – do you want me to give you a stay to put in submissions. I am not going to be finalising this within a fortnight so do you want a stay?
MR BURHALA: I will have a submission next week given your indication that you may not finalise it in a week.
MS GRAHAM: Yes. I mean there is lots of work ahead of it.
I would imagine that it would four or five weeks before you are advised of the decision and that is simply the Tribunal’s workload and internal processing. You can come to the Tribunal and receive the decision on the day or you can wait until it is posted out to you. All right? Now, we are very over time. Thank you everybody for coming today and I am sorry you had that pretty boring wait out in the foyer there. The hearing is now concluded and thank you for staying over.”
Having regard to those extracts and having regard to the introduction to which I referred earlier, it is clear to me from the outset that the MRT had imposed both on itself and on the applicants a significant time constraint of a kind that in this particular case, having regard to the particular nature of the issues before it, constituted a denial of natural justice.
It had been submitted by the respondent that the complaint by the applicants in this application that the MRT would not hear from all the witnesses was not "completely accurate". An interpretation was sought to be placed upon the transcript that the MRT indicated it considered it likely that it would run out of time and in fact reliance was placed upon the reference by the MRT to the passage quoted in paragraph 23 of this judgment.
Somewhat ironically, despite the lack of objection, one of the reasons for lack of objection may well have been that the applicants' then representative was lulled into what might be described as a "false sense of security". Ultimately, as it transpired, the witnesses were denied the opportunity of giving evidence and having their evidence tested in circumstances where in the course of its decision the tribunal made the significant findings referred to earlier. It is not an answer in those circumstances in the context of this case to simply assert that the applicants were represented and could have or should have sought an adjournment so that witnesses could be heard on another day or that the representative should have insisted on the witnesses being heard that day or indeed made other applications for prohibition in the Federal Court.
When parties represent applicants before the MRT, or indeed any other tribunal, it is understandable that to some extent an accommodation will be afforded to the MRT of the kind that occurred in this application, particularly when there is a confusing representation made by the MRT as to the possibility of not concluding the case before hearing all the witnesses. In any event, what occurred was that the witnesses were not heard, and although subsequently written documentation was provided to the MRT explaining various matters, it is clear that that written documentation was then analysed and rejected without again giving the sources of part of that information an opportunity to give oral evidence and/or be tested.
In my view, that then compounds the initial denial of procedural fairness by not permitting, as requested, the potential witnesses to give oral evidence. Moreover, as stated earlier, the importance and significance in the present case is not that this court should be reviewing the finding on an issue of credibility or indeed any other finding, even if it be a wrong finding of fact, but rather in the context of the tribunal's statutory powers it has failed to comply with the request for witnesses to be heard and reasons of its own convenience and time constraint which in the context of this case was unreasonable. It is significant that they were key witnesses on an issue of credibility whose written evidence was rejected with significant adverse findings made against the Applicants on the very issue of credibility.
In some cases a time constraint may indeed be a legitimate basis upon which a tribunal may refuse to accede to a request for witnesses to give oral evidence. In the context of the present case, however, I do not accept that the time constraint and adherence to that time constraint could properly be regarded as a legitimate basis for refusing the oral request. There is no other material which would indicate a basis upon which the MRT had refused to accede to the request for oral evidence, even though there may be some reference by the representative to choosing more important witnesses or even a suggestion that some of the witnesses give the same evidence. It is also clear from a brief analysis of the court book that there were numerous items of photographic evidence which were not dealt with in any detail by the MRT and which could easily have been the subject of oral evidence from the witnesses not called.
I should add that other cases were referred to by the applicants in support of this application, and in particular reference was made to a decision of the Full Court of the Federal Court of Australia in the matter of Minister for Immigration and Multicultural and Indigenous Affairs v WAFJ (2004) FCAFC 5 (WAFJ). In particular, in considering an appeal from the Federal Magistrates Court it was noted that concern had been expressed in relation to the proceedings before the tribunal and that the learned Federal Magistrate had formed the view that the tribunal member had predetermined the issue and had otherwise formed adverse views as to the conduct of the proceedings. It is not suggested in the present case that there was a need for this court to hear the audio record of the proceedings before the MRT or to reach a decision that the MRT had a predetermined view of the issues.
It is, however, noteworthy that in the decision of the Full Court of the Federal Court in WAFJ RD Nicholson J states the following:
“The course of the hearing is fully set out in the reasons of French J as supplemented by the reasons of Lee J. In my view, the course of that hearing was such that, approaching the matter with the requisite caution , it cannot be said that the Federal Magistrate fell into legal, factual or discretionary error in the conclusion which he reached on the issue of procedural fairness. This is not a case where, in the face of what occurred at the hearing before the Tribunal, it can be easily concluded that the apparent breaches could have had no bearing on the outcome of the hearing.”
As I understood the submissions for and on behalf of the applicants, it was simply submitted on the basis of that authority that in the present case the apparent breaches which I have already identified clearly do have a bearing on the outcome of the hearing, and I so find. It is clear to me that credibility was always the primary and key issue in this application. The denial of the applicants' request to provide oral evidence from the witnesses to which reference has been made in the circumstances was a denial of natural justice and clearly a denial which had a bearing on the outcome of the hearing adverse to the applicants.
I am satisfied that the orders sought by the applicant should be granted and that the respondent should pay the applicant's costs of and incidental to the application.
I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 19 October 2004
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